home > by publication type > backgrounders > IRAQ: International Law and POWs
Email
| Author: | Sharon Otterman |
|---|
March 31, 2003
The most important rule, enshrined in Common Article 3 of the 1949 Geneva Conventions, is that prisoners of war (POWs) must be treated humanely.
Part of the body of international humanitarian law that deals with how war is conducted. The law is laid out in a number of documents, the most important of which are four 1949 Geneva Conventions, two 1977 additions to them called protocols, and other treaties, such as the Hague Convention of 1907.
Apparently not, but the extent of its violations is not yet known. U.S. officials worry that some American prisoners have been tortured or executed. British Prime Minister Tony Blair said March 20 that two British POWs had been killed after capture. If true, these would be grave war crimes.
Showing a prisoner of war on television--as Iraq did--could also be an infraction of the rules, though a less serious one. Administration officials have said parading POWs violates Article 13 of the third Geneva Convention, which states that "prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity."
There are many allegations that it has. American POWs held by Iraq during the 1991 Gulf War have alleged that they were tortured. Last April, retired Air Force Col. David Eberly and other former Gulf War POWs filed a $900 million lawsuit against Iraq for the "barbarous" treatment of American prisoners. The lawsuit, filed in a Washington, D.C., federal court, alleged that the Iraqi agents tortured, beat, starved, shocked, and burned prisoners.
There have been no such reports in this war. However, in the war in Afghanistan, the Bush administration came under serious criticism from human rights groups and lawyers when it refused to extend POW status to captured Taliban and al-Qaeda fighters. The Bush administration later agreed to extend POW status to Taliban prisoners, but not al Qaeda. Some international humanitarian lawyers say that the United States' selective use of POW rules then has weakened its case for a strict interpretation of the Geneva Conventions now.
No. There is a large legal gray area about who is officially considered a POW, and thus over who is entitled to the detailed protections in the conventions. The law states that members of the armed forces of a nation, when captured, are prisoners of war. So are members of organized militias or volunteer corps that are part of the armed forces.
In general, legal combatants meet the following conditions:
Questions arise when fighters operate illegally and outside of the rules of war. For example, the United States has denied that al-Qaeda members qualify for POW status because, among other reasons, they do not constitute a national armed force.
Yes. They are still guaranteed humane treatment. They are also guaranteed the right to appeal their status through a due process hearing.
Yes. According to Article 17 of the Geneva Conventions, every prisoner of war must give his name, rank, date of birth, and serial number when captured. International lawyers say POWs can also be questioned, but under strict guidelines. "No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever," the law states. And POWs who refuse to answer "may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind."
The U.N. Charter regulates when one country can go to war with another. According to the charter, the use of force is generally banned, except under two conditions: in the pursuit of a nation's "inherent right of self defense" (Article 51), or when authorized by the U.N. Security Council (Chapter VII). Debate over the application of these provisions in practice is intense.
No. While both the United States and Iraq have ratified the 1949 Geneva Conventions, for example, neither has agreed to the 1977 agreements, which deal with guerrilla fighting and other issues of modern war. Generally, rules of war are determined not only by what is in treaties, but also by international consensus and practice. This is called customary international law.
Yes. No matter what one thinks about the legality of a war--some critics have said the U.S.-led assault on Iraq is unlawful--humanitarian laws must be followed. A strict interpretation of the Geneva Conventions would make illegal all tactics that unnecessarily endanger and target the civilian population.
Yes. It is considered an act of treachery or perfidy--and is a serious violation. Broadly defined, perfidy, or abuse of trust, takes place when a combatant tricks the enemy into thinking that he deserves protection under the laws of war. According to Article 37 of the 1977 addition to the Geneva Conventions, perfidy includes feigning:
Pentagon officials have recently accused the Iraqi forces of perfidy. However, because the United States has not ratified the 1977 protocol defining perfidy, that could complicate its legal case, lawyers say.
This can fall into a gray area, but generally the answer is no. Legal commentators say a combatant can use camouflage, but he cannot pretend to be a civilian and hide in a crowd. These distinctions can get tricky. If captured, such forces may not be entitled to POW status.
Often, they are not. In fact, many of the illegal actions banned by this law are staples of guerrilla warfare tactics. Such tactics were famously used by the Viet Cong in Vietnam and the irregular fighters in Somalia. That doesn't make them any less illegal. But in the heat of battle, the legality of actions may not be a major consideration.
Yes. The law permits what it calls ruses, which are actions intended to mislead the enemy, or induce him to act recklessly, but not those that trick them into thinking a combatant is entitled to humanitarian protections. Military handbooks list many of these: staging surprise attacks and ambushes, using decoys, transmitting misleading messages in the press, removing the signs indicating rank from uniforms, and many kinds of psychological warfare.
Weigh in on this issue by emailing CFR.org.
To order Task Force reports, Council Special Reports, and Critical Policy Choices, please call, fax, or order online from our distributor, the Brookings Institution Press: phone +1.800.537.5487, fax +1.410.516.6998.
For information on other reports that are not for sale, or for general publications information, please call +1.212.434.9516 or email publications@cfr.org.
Start-Up Nation addresses the trillion-dollar question: How is it that Israel—a country of 7.1 million, only sixty years old, surrounded by enemies— produces more start-up companies than large, peaceful, and stable nations like Japan, China, India, Korea, Canada, and the UK? With the insights of geopolitical experts and investors, the authors examine this nation’s adversity-driven culture to answer this question and offer prescriptions for a global economy on the rebound.
In Forces of Fortune, Vali Nasr presents a paradigm-changing revelation that will transform the understanding of the Muslim world at large. He reveals that there is a vital but unseen rising force in the Islamic world—a new business-minded middle class—that is building a vibrant new Muslim world economy and that holds the key to winning the cold war against Iran and extremists.
In Cuba: What Everyone Needs to Know, Julia E. Sweig presents a remarkably accessible portrait of Cuba's unique place on the world stage over the past fifty years, including its internal politics, its often fraught relationship with the United States, and its shifting relationship with the global community.
Complete list of CFR Books
The report of this bipartisan Task Force of distinguished leaders and experts represents a strong consensus on the importance of repairing America's immigration policy. It makes the case that maintaining America's political and economic leadership depends on attracting talented and hard-working immigrants, and on securing the country's borders in a smart, effective, and humane way.
This report finds that nuclear weapons will remain a fundamental element of U.S. national security in the near term, and makes recommendations on how to ensure the safety, security, and reliability of the U.S. deterrent nuclear force, prevent nuclear terrorism, and strengthen the nuclear nonproliferation regime.
About Independent Task Forces at CFR
Complete list of Task Force reports
Identifying international threats and acting on them may be the most difficult job for U.S. policymakers. This report
provides an actionable road map for managing international threats before they erupt into crises and makes a strong case that preventive action is not a luxury but a necessity.
For more than a decade, the United States has mostly watched from the sidelines as Asian countries organize themselves into an alphabet soup of new multilateral groups. In this report, the authors review the relationship between pan-Asian and trans-Pacific institutions and suggest policy guidelines for a new U.S. approach to this new Asian landscape.
Complete list of Council Special Reports
To request permission to reprint or reuse CFR material, please fill out this permissions request form (PDF), referring to the instructions on page 1.
Copyright 2009 by the Council on Foreign Relations. All Rights Reserved.